Thomas v. Sanchez et al

Filing 7

ORDER Requiring Plaintiff either to File Amended Complaint or to Notify Court of Willingness to Proceed only on Claims Identified Herein,signed by Magistrate Judge Stanley A. Boone on 10/16/2013. Amended Complaint due (30) Day Deadline (Attachments: # 1 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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ROBERT THOMAS,

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Plaintiff,
v.
S. SANCHEZ, et al.,
Defendants.

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Case No.: 1:12-cv-01224-SAB (PC)
ORDER REQUIRING PLAINTIFF EITHER TO
FILE AMENDED COMPLAINT OR TO NOTIFY
COURT OF WILLINGNESS TO PROCEED ONLY
ON CLAIMS IDENTIFIED HEREIN
THIRTY-DAY DEADLINE

Plaintiff Robert Thomas is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff filed the instant complaint on July 26, 2012.

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I.

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SCREENING STANDARD

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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 “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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

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to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare

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recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007)). Plaintiff must demonstrate that each named defendant personally participated in the

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deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County, Ariz., 609 F.3d

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1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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PLAINTIFF’S COMPLAINT

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According to Plaintiff’s complaint, on December 28, 2011, he was taken from his assigned cell

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in handcuffs to the shower during third watch patrol shift. After completing his shower, Plaintiff was

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handcuffed by correctional officers Banks and S. Sanchez and was taken to the dining hall holding cell

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for no reason other than harassment and abuse. Plaintiff was held in the holding cell for

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approximately 45 minutes to an hour. Plaintiff was taken out of the holding cell and escorted through

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the dining hall to the sally port area. He was then promptly and maliciously pepper sprayed in the

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back of the head and facial area and ordered to get on the ground by Sanchez for no reason. Plaintiff

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believed he was about to die because he is asthmatic of which Sanchez is fully aware.

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Once Plaintiff was handcuffed and face down on the ground in a prone position, correctional

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officer Castaneda kneed him in the back, and he was rolled on his side and pepper sprayed directly in

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the face by correctional officer M. Scott for no reason. Scott then laid Plaintiff back face down on the

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ground while he was gagging and having extreme difficulty breathing. He was left on the ground for

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approximately 4 minutes. The entire incident took place under the supervision of Sergeant Rohland

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who did nothing to prevent it.

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Also, on December 28, 2011, while Plaintiff was face down on the ground in a prone position

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in Unit-4 sally port, correctional officers J. Chavez and S. Dickerson rolled him onto his back then

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dragged him by his feet across the concrete and dirt to the dining hall. He was placed on his knees by

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Chavez and Dickerson. Defendants Chavez, Dickerson, and Rohland would not allow a nurse to

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examine him. He was then “snatched” up by his arms to his feet by Chavez and Dickerson and

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escorted from one unit to another while barefoot through the cold with only a pair of boxer shorts.

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Plaintiff was placed in a cell that is designed to abuse, oppress, torture and treat an inmate with cruel

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and unusual punishment.

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The cell Plaintiff was placed in had no desk, no lockers, no bunk, and no “real” mattress. He

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was made to do everything from the dirty cell floor as if he was an animal. All of the incidents took

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place under the supervision of Sergeant P. Rohland who did nothing to stop the abuse and inhumane

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treatment. Plaintiff was not decontaminated by any staff after being pepper sprayed, and he was left in

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the inhumane living conditions for approximately two weeks. All of the defendants wrote a false

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report regarding the incident.

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III.

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DISCUSSION

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A.

Excessive Force

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The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments

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Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995 (1992)

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(citations omitted). For claims arising out of the use of excessive physical force, the issue is “whether

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

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sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (citing Hudson,

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503 U.S. at 7) (internal quotation marks omitted); Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir.

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2013). The objective component of an Eighth Amendment claim is contextual and responsive to

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contemporary standards of decency, Hudson, 503 U.S. at 8 (quotation marks and citation omitted), and

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although de minimis uses of force do not violate the Constitution, the malicious and sadistic use of
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force to cause harm always violates contemporary standards of decency, regardless of whether or not

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significant injury is evident, Wilkins, 559 U.S. at 37 (citing Hudson, 503 U.S. at 9-10) (quotation

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marks omitted); Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002).

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Plaintiff’s allegations are sufficient to state a claim against Defendants S. Sanchez, M. Scott, J.
Chavez, S. Dickerson, and P. Rohland, for use of excessive force.

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B.

Inhumane Conditions

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The Eighth Amendment protects prisoners from inhumane methods of punishment and from

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inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).

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Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing,

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sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000).

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Extreme deprivations are required to make out a conditions of confinement claim, and only those

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deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form

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the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995

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(1992) (citations and quotations omitted). In order to state a claim for violation of the Eighth

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Amendment, the plaintiff must allege facts sufficient to support a claim that prison officials knew of

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and disregarded a substantial risk of serious harm to the plaintiff. See, e.g., Farmer v. Brennan, 511

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U.S. 825, 847, 114 S.Ct. 1970 (1994); Thomas v. Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010);

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Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir. 2009); Frost v. Agnos, 152 F.3d 1124, 1128 (9th

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Cir. 1998).

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Plaintiff’s allegations do not give rise to a claim under the Eighth Amendment. Plaintiff

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alleges that the holding cell where he remained for approximately two weeks had no desk, no lockers,

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no bunk, no “real” mattress, and he was required to do everything from the dirty floor. While Plaintiff

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alleges in vague terms that he did not have access to a bunk, no “real” mattress, and was required to do

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everything from a dirty floor, the factual circumstances do not provide enough detail for the Court to

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determine whether the circumstances caused an “extreme deprivation” required to support a

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constitutional violation, such as the meaning of being deprived of any “real” mattress. See, e.g.,

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Schroeder v. Kaplan, 60 F.3d 834 (9th Cir. 1995) (citing cases where failure to provide a mattress

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violated the Eighth Amendment only when accompanied by other facts, such as inadequate clothing,
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extreme cold, improper diet, denied right to use toil, had to lie in own excrement); Muniz v. Hill, No

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CV-06-120-ST, 2008 WL 1995457, at *5-6 (D. Or. 2008) (no mattress for thirty days, with instead

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prison being compelled to sleep on a rubber security mat on a dirty floor, did not implicate Eighth

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Amendment); Desroche v. Strain, 507 F.Supp.2d 571, 579-580 (E.D. La. 2007) (recommending

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pretrial detainee’s allegation that he was compelled to sleep on concrete floor of unsanitary holding

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tank without a mattress for ten days be dismissed as legally frivolous and for failure to state a claim);

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Brown v. Hamblin, No. 03-C-139-C, 2003 WL 23274543, at *2 (W.D. Wis. 2003) (jail inmate’s claim

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regarding being forced to sleep on a mattress on a dirty jail floor for 28 days and later for an additional

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8 days dismissed as legally frivolous). Nor has Plaintiff alleged that each of the named Defendants

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were aware and deliberately indifferent to a substantial risk of harm to his health or safety. Plaintiff

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will be given leave to amend this claim to allege an objectively serious deprivation and Defendants’

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subjective deliberate indifference thereto.

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IV.

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CONCLUSION AND ORDER

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Plaintiff’s complaint states a cognizable claim against Defendants Sanchez, Scott, Chavez,

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Dickerson, and Rohland for excessive force in violation of the Fourth Amendment. Plaintiff has not

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sufficiently alleged facts for any other claims against any of the other named Defendants. The Court

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will provide Plaintiff with the opportunity to file an amended complaint curing the deficiencies

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identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended

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complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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If Plaintiff does not wish to file an amended complaint and is agreeable to proceeding only on

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the claim for excessive force against Defendants Sanchez, Scott, Chavez, Dickerson, and Rohland,

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Plaintiff may so notify the Court in writing, and the Court will issue a recommendation for dismissal

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of the other claims and Defendants, and will forward Plaintiff one (5) summons and one (5) USM-285

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form for completion and return. Upon receipt of the forms, the Court will direct the United States

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Marshal to initiate service of process.

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If Plaintiff opts to amend, his amended complaint should be brief. Fed. R. Civ. P. 8(a).
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Plaintiff must identify how each individual defendant caused the deprivation of Plaintiff’s

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constitutional or other federal rights: “The inquiry into causation must be individualized and focus on

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the duties and responsibilities of each individual defendant whose acts or omissions are alleged to

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have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). With

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respect to exhibits, while they are permissible if incorporated by reference, Fed. R. Civ. P. 10(c), they

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are not necessary in the federal system of notice pleading, Fed. R. Civ. P. 8(a). In other words, it is

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not necessary at this stage to submit evidence to prove the allegations in Plaintiff’s complaint because

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at this stage Plaintiff’s factual allegations will be accepted as true.

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Although Plaintiff’s factual allegations will be accepted as true and “the pleading standard

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Rule 8 announces does not require ‘detailed factual allegations,’” “a complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,

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550 U.S. at 556).

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Plaintiff is advised that an amended complaint supersedes the original complaint. Forsyth v.

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Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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The amended complaint must be “complete in itself without reference to the prior or superseded

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pleading.” Local Rule 220. Plaintiff is warned that “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing

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London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

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In other words, even the claims that were properly stated in the original complaint must be completely

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stated again in the amended complaint. Finally, Plaintiff is advised that, should he choose to amend,

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he may not bring unrelated claims in the same action.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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

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2.

Within thirty (30) days from the date of service of this order, Plaintiff must either:

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a.

File an amended complaint curing the deficiencies identified by the Court in this
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order, or

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b.

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Notify the Court in writing that he does not wish to file an amended complaint

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and wishes to proceed only against Defendants Sanchez, Scott, Chavez,

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Dickerson, and Rohland for excessive force; and

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3.

If Plaintiff fails to comply with this order, this action will be dismissed for failure to
obey a court order.

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IT IS SO ORDERED.

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Dated:

October 16, 2013

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UNITED STATES MAGISTRATE JUDGE
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