Barber v. King

Filing 8

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Gerald B. Cohn on 9/18/2012. Amended Complaint Due Within Thirty Days. (Attachment: # 1 Amended Complaint form) (Marrujo, C).

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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SCOTT BARBER,

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CASE NO. 1:11-cv-00130-GBC (PC)
Plaintiff,

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ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
C. KING,

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(Doc. 1)
Defendant.

AMENDED COMPLAINT
THIRTY DAYS

DUE

WITHIN

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I.

Procedural History

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Scott Barber (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis, in this

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civil rights action pursuant to 42 U.S.C. § 1983. On January 25, 2011, Plaintiff filed the complaint

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which is presently before this Court. Doc. 1.

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II.

Screening Requirement

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v.

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United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898

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(9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the

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allegations of the complaint in question, and construe the pleading in the light most favorable to the

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plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22

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(1969); Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).

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III.

Plaintiff’s Complaint

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Plaintiff is currently a state prisoner at the California Correctional Institution (CCI) in

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Tehachapi, California. The events central to Plaintiff’s complaint occurred while he was a prisoner

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at CCI. Doc. 1. In the complaint, Plaintiff names C. King (Correctional Officer) as a defendant in

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this action and seeks monetary relief. Doc. 1 at 2-3.

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Plaintiff alleges that Defendant King woke Plaintiff and told him to get out of bed because

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she thought Plaintiff was acting strange. Doc. 1 at 3. Plaintiff got off his bunk and was ordered to

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turn and look the other way. Doc. 1 at 3. Plaintiff turned and asked Defendant King “what did I

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do?” and she pepper sprayed him. Doc. 1 at 3. According to Plaintiff, he did not lunge towards

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Defendant King and never had a problem with Defendant King or any other officer. Doc. 1 at 3.

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Plaintiff attaches the Rules Violation Report (RVR) to his complaint, indicating that he was found

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guilty of assault on an officer and in which he states that he wants his ninety days of good time

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credits restored. Doc. 1 at 4-6.1

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The Court may review exhibits attached to the complaint that may contradict Plaintiff’s assertions in the
complaint. Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir. 2000); Durning v. First Boston Corp., 815 F.2d 1265,
1267 (9th Cir. 1987).

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IV.

Applicable Law and Analysis

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A.

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The Eighth Amendment prohibits prison officials from using “excessive physical force

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against inmates.” Farmer v. Brennan, 511 U.S. 825 (1994); Hoptowit v. Ray, 682 F.2d 1237, 1246,

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1250 (9th Cir.1982). “Being violently assaulted in prison is simply not ‘part of the penalty that

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criminal offenders pay for their offenses against society.’” Farmer, 511 U.S. at 834, (quoting

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Rhodes, 452 U.S. at 347).

Eighth Amendment Excessive Force

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Although the Eighth Amendment protects against cruel and unusual punishment, this does

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not mean that federal courts can or should interfere whenever prisoners are inconvenienced or suffer

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de minimis injuries. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (Eighth Amendment excludes

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from constitutional recognition de minimis uses of force). For claims of excessive physical force,

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

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maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7. The malicious and sadistic use

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of force to cause harm always violates contemporary standards of decency, regardless of whether

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significant injury is evident. Hudson, 503 U.S. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th

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Cir.2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de

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minimis injuries)). “Injury and force . . . are only imperfectly correlated, and it is the latter that

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ultimately counts. An inmate who is gratuitously beaten by guards does not lose his ability to pursue

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an excessive force claim merely because he has the good fortune to escape without serious injury.”

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Wilkins v. Gaddy, 130 S.Ct. 1175, 1178-79 (2010). However, not “every malevolent touch by a

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prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9.

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B.

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In Edwards v. Balisok, 520 U.S. 641, the United States Supreme Court extended the doctrine

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articulated in Heck v. Humphrey, 512 U.S. 477, 487 (1994), to prison disciplinary hearings. In Heck,

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the Court held that a state prisoner’s claim for damages for unconstitutional conviction or

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imprisonment is not cognizable under § 1983 if a judgment in favor of plaintiff would necessarily

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imply the invalidity of his conviction or sentence, unless the prisoner can demonstrate that the

Heck v. Humphrey & Smithart v. Towery

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conviction or sentence has previously been invalidated. Heck, 512 U.S. at 487. In applying this

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principle to the facts of Edwards v. Balisok, the Court held that a claim challenging the procedures

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used in a prison disciplinary hearing, even if such claim seeks money damages and no injunctive

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relief, is not cognizable under § 1983 if the nature of the inmate’s allegations are such that, if proven,

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would necessarily imply the invalidity of the result of the prison disciplinary hearing. Edwards v.

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Balisok, 520 U.S. at 648. “Heck, in other words, says that if a criminal conviction arising out of the

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same facts stands and is fundamentally inconsistent with the unlawful behavior for which section

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1983 damages are sought, the 1983 action must be dismissed.” Smithart v. Towery, 79 F.3d 951, 952

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(9th Cir.1996).

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Plaintiff submitted evidence of the rules violation and disciplinary decision demonstrating

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that the: 1) guilty disciplinary finding; 2) loss of 90 days good time credits; and 3) Plaintiff’s

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excessive force claim arose from the same incident. Doc. 1 at 4-6. A finding in Plaintiff’s favor in

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this action would necessarily imply the invalidity of the result of the disciplinary hearing finding

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Plaintiff guilty of assault on an officer. Thus, the Court finds that Plaintiff fails to state a claim as

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his claim is barred unless Plaintiff can demonstrate that the underlying disciplinary hearing was

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overturned. See Edwards v. Balisok, 520 U.S. at 648; Smithart v. Towery, 79 F.3d 951, 952 (9th

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Cir.1996); see also Walker v. Fresno Police Dept., 249 Fed.Appx. 525, 526 (9th Cir. 2007)

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(unpublished); Ra El v. Crain, 399 Fed.Appx. 180, 182 (9th Cir. 2010) (unpublished).

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V.

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Plaintiff’s complaint fails to state a claim upon which relief may be granted under section

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1983. The Court will grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson,

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809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding

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new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007).

Conclusions and Order

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.

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Ashcroft v. Iqbal, 556 U.S. 662, 675-76 (2009). Although accepted as true, the “[f]actual allegations
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must be [sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

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

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complete in itself without reference to any prior pleading. An amended complaint supercedes the

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original complaint, Lacey v. Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1

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n.1 (9th Cir. Aug. 29, 2012) (en banc), and it must be “complete in itself without reference to the

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prior or superceded pleading,” Local Rule 220. Therefore, in an amended complaint, as in an

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original 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 "Second Amended Complaint," refer to

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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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The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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2.

Plaintiff’s complaint, filed January 25, 2011, is dismissed for failure to state a claim

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upon which relief may be granted;

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3.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and

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4.

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If Plaintiff fails to file an amended complaint in compliance with this order, this
action will be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:
0jh02o

September 18, 2012
UNITED STATES MAGISTRATE JUDGE

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