Perez v. Brown

Filing 16

ORDER DISMISSING 15 FIRST AMENDED COMPLAINT for Failure to State a Claim WITH LEAVE TO AMEND signed by Magistrate Judge Dennis L. Beck on 5/9/2013. Second Amended Complaint due within thirty (30) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JORGE PEREZ,

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Plaintiff,

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v.
EDMUND G. BROWN, JR., et al.,

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Defendants.

Case No. 1:12-cv-01742-DLB PC
ORDER DISMISSING FIRST AMENDED
COMPLAINT FOR FAILURE TO STATE A
CLAIM WITH LEAVE TO AMEND
ECF No. 15
RESPONSE DUE WITHIN THIRTY DAYS

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I.

Background
Plaintiff Jorge Perez (“Plaintiff’) is a prisoner in the custody of the California Department of

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Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in forma pauperis in

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this civil action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his Complaint

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in the Northern District of California. On October 25, 2012, the action was transferred to this Court.

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On December 12, 2012, Plaintiff filed his First Amended Complaint. ECF No. 15. The First

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Amended Complaint is before the Court for screening.

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

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is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). While factual

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allegations are accepted as true, legal conclusions are not. Id.

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II.

Summary of First Amended Complaint
Plaintiff was incarcerated at California Correctional Institution (“CCI”) in Tehachapi,

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California, where the events giving rise to this action occurred. Plaintiff names as Defendants CCI

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correctional officers Y. Pantoja and S. Phair.

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Plaintiff alleges the following. Plaintiff went to seek medical attention on September 27,

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2012. Plaintiff was denied medical attention and was chemically attacked by Defendants. Plaintiff

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requests as relief: one million dollars in compensatory and punitive damages.

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III.

Analysis
Eighth Amendment – Medical Care

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A.

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The Court will construe Plaintiff’s medical care claim as arising from the Eighth

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Amendment. . The Eighth Amendment prohibits cruel and unusual punishment. “The Constitution

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does not mandate comfortable prisons.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation

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and citation omitted). Prison officials must provide prisoners with adequate food, clothing, shelter,

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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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A prisoner’s claim of inadequate medical care does not rise to the level of an Eighth Amendment

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violation unless (1) “the prison official deprived the prisoner of the ‘minimal civilized measure of

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life’s necessities,’” and (2) “the prison official ‘acted with deliberate indifference in doing so.’”

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Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732,

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744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an objective
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and a subjective prong. First, the alleged deprivation must be, in objective terms, “sufficiently

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serious . . . .” Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second,

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the prison official must “know[] of and disregard[] an excessive risk to inmate health or safety . . . .”

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Id. at 837.

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“Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. “Under this

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standard, the prison official must not only ‘be aware of the facts from which the inference could be

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

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

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risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the

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risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
Plaintiff fails to allege any facts which indicate that Plaintiff suffered from a serious harm, or
that Defendants knew of and disregarded an excessive risk of serious harm to Plaintiff’s health.
Eighth Amendment – Excessive Force

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B.

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Plaintiff’s allegation of being “chemically attacked” is construed as a claim for excessive

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force in violation of the Eighth Amendment. What is necessary to show sufficient harm for purposes

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of the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim at

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issue . . . .” Hudson v. McMillian, 503 U.S. 1, 8 (1992). “The objective component of an Eighth

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Amendment claim is . . . contextual and responsive to contemporary standards of decency.” Id.

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(internal quotation marks and citations omitted). The malicious and sadistic use of force to cause

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harm always violates contemporary standards of decency, regardless of whether or not significant

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injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth

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Amendment excessive force standard examines de minimis uses of force, not de minimis injuries)).

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However, not “every malevolent touch by a prison guard gives rise to a federal cause of action.”

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Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition of cruel and unusual punishments

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necessarily excludes from constitutional recognition de minimis uses of physical force, provided that

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the use of force is not of a sort repugnant to the conscience of mankind.” Id. at 9-10 (internal

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quotations marks and citations omitted).

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“[W]henever prison officials stand accused of using excessive physical force in violation of
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the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was

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

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cause harm.” Id. at 7. “In determining whether the use of force was wanton and unnecessary, it may

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also be proper to evaluate the need for application of force, the relationship between that need and

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the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts

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made to temper the severity of a forceful response.” Id. (internal quotation marks and citations

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omitted). “The absence of serious injury is . . . relevant to the Eighth Amendment inquiry, but does

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not end it.” Id.

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Plaintiff fails to allege sufficient facts which would indicate that Defendants used excessive

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force on Plaintiff in violation of the Eighth Amendment.

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IV.

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Conclusion and Order
Plaintiff fails to state any cognizable federal claims against any Defendants. The Court will

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provide Plaintiff with an opportunity to file a second 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 decides to amend, Plaintiff’s amended complaint should be brief, Fed. R. Civ. P.

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8(a), but must state what each named defendant did that led to the deprivation of Plaintiff’s

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constitutional or other federal rights. See Iqbal, 556 U.S. at 678. Although accepted as true, the

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

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Twombly, 550 U.S. at 555.

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint,

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) overruled in part on other grounds,

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Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. Aug. 29, 2012) (en banc); King v. Atiyeh,

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814 F.2d 565, 567 (9th Cir. 1987), and must be “complete in itself without reference to the prior or

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superseded pleading,” L. R. 220.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a complaint form;
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Plaintiff’s first amended complaint is dismissed for failure to state a claim, with leave

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to file a second amended complaint within thirty (30) days from the date of service of this order;

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Plaintiff may not add any new, unrelated claims to this action via the second amended

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complaint and any attempt to do so may result in an order striking the second amended complaint;

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and

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If Plaintiff fails to comply with this order, the Court will dismiss this action for failure

to obey a court order and failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

May 9, 2013

L. Beck

UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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