Smith v. Corcoran State Prison et al

Filing 11

ORDER DISMISSING CASE WITH LEAVE TO AMEND ;ORDERED that First Amended Complaint due within thirty days, signed by Magistrate Judge Gerald B. Cohn on 07/6/2011. (THIRTY (30) DAY DEADLINE) (Attachments: # 1 1983 AMENDED COMPLAINT FORM)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KENNETH A. SMITH,

CASE NO. 1:10-cv-01761-GBC (PC)

Plaintiff,

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COMPLAINT DISMISSED WITH LEAVE TO
AMEND

v.

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(ECF No. 1)
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CORCORAN STATE PRISON, et al.,
FIRST AMENDED COMPLAINT DUE
WITHIN THIRTY DAYS

Defendants.

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SCREENING ORDER

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I.

PROCEDURAL HISTORY

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Plaintiff Kenneth A. Smith (“Plaintiff”) is a former state prisoner proceeding pro se

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and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed

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this action on September 20, 2010 and consented to Magistrate Judge jurisdiction on

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October 6, 2010. (ECF Nos. 1 & 7.) No other parties have appeared.

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Plaintiff’s Complaint is now before the Court for screening. For the reasons set forth

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below, the Court finds that Plaintiff has failed to state any claims upon which relief may be

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granted.

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II.

SCREENING REQUIREMENTS

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

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

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

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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which
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relief may be granted, or that seek monetary relief from a defendant who is immune from

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

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

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

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

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

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

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

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

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

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

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

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

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III.

SUMMARY OF COMPLAINT

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It is difficult to decipher what Plaintiff is alleging. It appears that he may be alleging

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violations of his Eighth Amendment right and violations of his right to due process. Plaintiff

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names the following entities as Defendants: Corcoran State Prison, Correctional

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Administration, Division E-1 Ad Seg, and Housing for Inmate Location Administration CDC

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Officials.

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Plaintiff alleges as follows: On July 27, 2009, Plaintiff was placed in administrative

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segregation. A prison official shoved and pushed Plaintiff into the cell and then cussed at

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him. Plaintiff states that the clothes and shoes he was given were too small and he had

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to wait for weeks to receive new ones. Plaintiff states that he was placed in a detention

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cell did not have a food port, wall shelves, table, or seat. Plaintiff further states that the cell

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was hot and loud. Plaintiff also states that he was misclassified and should not have been

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placed in a detention cell.
The Court is unable to determine what relief Plaintiff seeks.

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//
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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.

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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.
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1997) (internal quotations omitted).
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A.

Due Process

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Plaintiff appears to allege that his due process rights were violation through a wrong
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housing placement.
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The Due Process Clause protects prisoners from being deprived of liberty without
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due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a
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cause of action for deprivation of due process, a plaintiff must first establish the existence
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of a liberty interest for which the protection is sought.

“States may under certain

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circumstances create liberty interests which are protected by the Due Process Clause.”
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Sandin v. Conner, 515 U.S. 472, 483–84 (1995). Liberty interests created by state law are
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generally limited to freedom from restraint which “imposes atypical and significant hardship
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on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484.
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Where prison conditions are at issue, a change in conditions so severe as to affect
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the sentence imposed in an unexpected manner implicates the Due Process Clause itself,
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whether or not such change is authorized by state law. Id. at 484. Neither changes in
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conditions relating to classification and reclassification nor the hardship associated with
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administrative segregation, such as loss of recreational and rehabilitative programs or
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confinement to one’s cell for a lengthy period of time, violate the Due Process Clause itself.
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See Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (classification); Toussaint
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v. McCarthy, 801 F.2d 1080, 1091-92 (9th Cir. 1986) (administrative segregation).
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Plaintiff appears to be alleging that he was improperly placed in a detention cell.

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However, the Court notes that Plaintiff does not have a constitutional right to determine his

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own housing placement. Meachum v. Fano, 427 U.S. 215, 225 (1976). Thus, if such a

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right exists, it must be created by California in a manner that gives rise to a liberty interest.

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The definition of a state created liberty interest usually means the state has established

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“substantive predicates” to govern official decision-making and mandates the outcome to

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be reached upon a finding that the relevant criteria have been met. Kentucky Dept. of

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Corrections v. Thompson, 490 U.S. 454, 460-62 (1989). Plaintiff will be given leave to

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amend to attempt to state such a claim.

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B.

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Plaintiff appears to be making several arguments for violation of his Eighth

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Eighth Amendment

Amendment rights.
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Cruel and Unusual

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Plaintiff seems to allege that he was subjected to cruel and unusual punishment

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because of some misclassification, because he was given the wrong size clothing, and

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because of the temperature and volume of noise in his cell.

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

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

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

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

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

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See id.

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

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

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

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Deliberate indifference is shown by “a purposeful act or failure to respond to a

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

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Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing McGuckin v. Smith, 974 F.2d 1050,

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1060 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d
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1133 (9th Cir. 1997) (en banc)). “Deliberate indifference is a high legal standard.” Toguchi

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v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Under this standard, the prison official

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must not only ‘be aware of the facts from which the inference could be drawn that a

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substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id.

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at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a [prison official] should have been aware

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of the risk, but was not, then the [official] has not violated the Eighth Amendment, no

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matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d

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1175, 1188 (9th Cir. 2002)).

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As to the misclassification, Plaintiff does not attribute this action to any named

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Defendant.

Nor does he state that any named Defendant was aware of the

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misclassification. If Plaintiff intends to pursue this claim, he must describe in greater detail

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who was responsible for the misclassification, what the consequences of the

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misclassification were, how they effected Plaintiff, etc.

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As to the wrong sized clothes and shoes, as currently pleaded, this is not a sufficient

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serious deprivation to reach constitutional level. And, again, Plaintiff does not attribute this

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action/inaction to any named Defendant. Thus, this claim too fails. If Plaintiff chooses to

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amend it, he must make sure to meet the criteria stated above.

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As to the temperature and volume of noise in his cell, as stated above, this is not

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a sufficient serious deprivation to reach constitutional level. Plaintiff merely states that his

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cell had a high temperature and that there needed to be volume control in his cell. Again,

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Plaintiff fails to attribute responsibility for the cell’s condition to any named Defendant.

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Thus, this claim too fails. If Plaintiff chooses to amend it, he must make sure to meet the

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criteria stated above.

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2.

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Plaintiff claims that Defendants used excessive force in violation of his

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Excessive Force

constitutional rights.

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

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with “identifying the specific constitutional right allegedly infringed by the challenged
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application of force.”

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

The Eighth

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

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

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

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

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2001).

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

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

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

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

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

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prohibition of cruel and unusual punishments necessarily excludes from constitutional

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

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

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citations omitted).

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

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

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

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

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

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

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

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

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

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1175, 1176-77 (2010).

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Plaintiff states that a prison official shoved him into his cell and then yelled at him

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using inappropriate language. As stated above, not every touch by a prison official violates

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the Eighth Amendment. As currently pleaded, Plaintiff fails to state a claim. Being pushed

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into one’s cell, without more, does not appear to be an excessive use of force. Nor does
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it appear to be applied maliciously or sadistically. Plaintiff will be given leave to amend.

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C.

Doe Defendants

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Plaintiff fails to name any individuals in his statement of the claim. The Defendants

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he names on the first page of his Complaint mostly appear to be institutions though he also

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refers to Housing for Inmate Location Administration CDC officials. The Court assumes

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this is the same as using the term “Doe”. “As a general rule, the use of ‘John Doe’ to

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identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).

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“It is permissible to use Doe defendant designations in a complaint to refer to defendants

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whose names are unknown to plaintiff. Although the use of Doe defendants is acceptable

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to withstand dismissal of a complaint at the initial review stage, using Doe defendants

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creates its own problem: those persons cannot be served with process until they are

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identified by their real names.” Robinett v. Correctional Training Facility, 2010 WL

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2867696, *4 (N.D. Cal. July 20, 2010).

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Plaintiff is advised that John Doe defendants can not be served by the United States

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Marshal until he has identified them as actual individuals and amended his complaint to

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substitute the Defendants’ actual named. The burden remains on Plaintiff to promptly

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discover the full name of Doe Defendants; the Court will not undertake to investigate the

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names and identities of unnamed defendants. Id. The Court will grant Plaintiff leave to

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amend this claim and attempt to set forth sufficient identification.

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D.

Personal Participation and Supervisory Liability

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Plaintiff does not include any of the named Defendants in the statement of the case.

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Plaintiff could be arguing that some of these Defendants are liable for the conduct of his

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or her subordinates as they were not present and did not participate in the complained of

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conduct as currently described by Plaintiff.

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Under Section 1983, Plaintiff must demonstrate that each named Defendant

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

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

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liability,” loosely and commonly used by both courts and litigants alike, is a misnomer.
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Iqbal, 129 S.Ct. at 1949.

“Government officials may not be held liable for the

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

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

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

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

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1948-49.

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

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

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

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

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

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

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

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

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

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

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

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involvement. Id. (internal quotations omitted).

Wesley, 333

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

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

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

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

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

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

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Cir. 1978)).

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

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

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

However, “where the applicable constitutional standard is deliberate

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

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

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a violation of his rights. Plaintiff shall be given one additional opportunity to file an

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amended complaint curing the deficiencies in this respect.

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V.

CONCLUSION AND ORDER

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

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

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

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

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

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

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

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

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002).

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

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

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

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issues described herein.

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

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

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

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

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

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

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

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

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Based on the foregoing, it is HEREBY ORDERED that:

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

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

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order;
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refer to the case number 1:10-cv-1761-GBC (PC); and

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3.

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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.

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

IT IS SO ORDERED.

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Dated:
1j0bbc

July 6, 2011
UNITED STATES MAGISTRATE JUDGE

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